If They are Placed in Prison like Criminals, Then Why Don't they get a Lawyer?

By Yujin Chun & Carolyn Wald, Cornell Law School Students in the Appellate Immigration Asylum Clinic (with Professor Sital Kalantry)

  Marta Sanchez* has lived in a cell for over a year. She has not seen her parents and three children in even longer.  She wears a standard-issue green jumpsuit and sleeps on a standard-issue mat.  In the recreation area of the facility, Marta sits among prisoners. From the outside, it appears there are few differences between them.  But the prisoners have at least one thing Marta does not: a criminal conviction. Ironically, this distinction affords these prisoners a luxury that Marta, and others like her, are not provided: a lawyer. 

 Marta is an asylum-seeker from El Salvador who fled to the United States in January 2014 to escape her ex-partner who, during and beyond their five-year relationship, beat, raped, starved, threatened, and stalked Marta despite her attempts to escape him. She also began receiving extortion threats from an infamous gang with which her abuser was associated. Having seen her family friend “pulled to pieces” by the same gang not a year earlier, Marta went into hiding until she began her arduous journey to the United States. She was apprehended at the border, where she claimed asylum. Marta was fortune to have been given bond, but neither she nor anyone she knew could afford to pay the astronomical $7,500. Thus began her detention, with no end in sight. . 

 At her hearing, Marta explained her story – how her partner savagely beat her and her young children, how the police refused to help her because it was a “private matter” – and the Immigration Judge found her credible. Yet, she was denied asylum.  Without a lawyer, Marta was left to represent herself in court.  Marta did not know she was supposed to establish that she was a part of a “particular social group” or that she had to show “government acquiescence” to her “past persecution.” She does not speak English and had trouble communicating through a translator. She did not know to argue that her case was nearly identical to Matter of A-R-C-G-, a case decided by the Board of Immigration Appeals in August that held that domestic violence could be a basis for granting asylum.  It is an immigration judge’ duty to develop the record when an immigration does not have representation, but immigration judge’s across the country are interpreting Matter of A-R-C-G in a formalistic way to deny legitimate claims. As she began the appeals process (this time with pro bono assistance) she was staring into what seemed like endless detention. 

 Had Marta been a criminal defendant instead of someone seeking refuge in the United States, the Sixth Amendment of the U.S. Constitution would have guaranteed her the assistance of counsel for her defense. This right applies to all felony prosecutions and to any misdemeanor prosecutions in which jail time or suspended jail sentence is imposed. Despite that Marta has been detained in prison-like conditions and would face serious harm—perhaps even death—upon her deportation to El Salvador, the Sixth Amendment right to counsel does not extend to her because immigration proceedings are not criminal. 

 Asylum-seekers like Marta have broken no laws.  Claiming asylum is a legitimate and legal pathway to residency in the United States, yet the current system subjects people like Marta to prison-like conditions with fewer rights than murderers and rapists. That the United States continues to pretend that immigration proceedings are mere civil proceedings – not serious enough for Sixth Amendment rights to attach – is a travesty of justice.  The current method of processing and holding asylum seekers is practically indistinguishable from that of convicted criminals. The detention center where Marta is held is proof of that.  The center is owned and operated by Corrections Corporation of America (CCA), the largest private prison contractor in the nation.  Further, like the center where Marta is held, many CCA-owned facilities are dual-purpose centers, housing both convicted criminals and detainees awaiting asylum proceeding under the same roof.  If our country is going to treat detainees like criminals, shouldn’t we also give them a right to counsel?

 * The name has been changed to protect the detainee’s identity.